Heart v. Commonwealth

• Decision Date: 13 September 2022
• Docket Number: Record No. 1120-21-1
• Parties: Devinceo Dontre HEART v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

75 Va.App. 453

877 S.E.2d 522

Devinceo Dontre HEART

v.COMMONWEALTH of Virginia

Record No. 1120-21-1

Court of Appeals of Virginia, Norfolk.

September 13, 2022

W. McMillan Powers, Assistant Public Defender, for appellant.

David A. Mick, Assistant Attorney General (Jason S. Miyares, Attorney General; Sharon M. Carr, Assistant Attorney General, on brief), for appellee.

Present: Judges Beales, Ortiz and Lorish

OPINION BY JUDGE LISA M. LORISH

At a probation violation hearing where the parties agreed that the newly enacted Code § 19.2-306.1 applied, the court found Devinceo Dontre Heart committed a technical violation of his probation. This case requires us to interpret Code § 19.2-306.1 and determine whether its penalty provisions for a "third or subsequent technical violation" apply when a defendant commits a third violation—technical in nature—after two earlier non-technical violations. Interpreting the plain language of the text as it was written, we conclude that "third or subsequent technical violation" requires three or more "technical violations" before the related penalty provision may apply. Because the trial court reached the opposite conclusion—that a third or subsequent violation, if technical, triggers the enhanced penalty provision regardless of the nature of the earlier violations—we reverse and remand for resentencing.

FACTUAL BACKGROUND

In October 2021, Heart appeared before the trial court for a hearing to determine whether he had violated the terms of his probation. This hearing took place several months after legislative changes to the statutory scheme governing probation revocation took effect on July 1, 2021. Before the hearing, Heart's probation officer prepared a sentencing revocation report and a guidelines range based on the newly effective statutes, in particular Code § 19.2-306.1. Relevant to this appeal, the statutory scheme now distinguishes between technical and non-technical violations of probation and newly limits the sentence a court may impose for first and second technical violations.

Heart was originally convicted of possession with intent to distribute cocaine in October 2010 and sentenced to serve five years of imprisonment, with four years and five months suspended upon his successful completion of five years of supervised probation. In the intervening years, Heart violated his probation twice. One order shows that his probation was revoked and his sentence reimposed, with three years and five months resuspended, in March 2014. According to another order, Heart's probation was revoked again in August 2018, his remaining sentence reimposed, and three years and four months resuspended.

At his revocation hearing in October 2021, Heart contested that a violation had occurred. His probation officer testified about the present violation—that Heart had failed to report as directed and failed to maintain contact with her. The officer also listed the dates of his prior violations, and the sentences imposed, without describing them further. No violation reports were introduced into the record for these prior revocations, and nothing from the orders themselves mentions the nature of the violations.

The officer also testified that Heart had new charges pending in Chesapeake Circuit Court. Heart's counsel objected to this testimony as irrelevant to the violations alleged. The trial court allowed the testimony because "good behavior is always before the court" while explaining that it was not considering whether Heart violated "condition one [for committing a new offense]." The court continued, "It appears that this is a third offense. It's a technical violation."

At the end of the Commonwealth's evidence on the violation, Heart made a motion to strike, arguing that he was "charged with a technical violation, third offense" but that there had "been no evidence ... of two prior technical violations." In other words, there was no evidence that Heart committed two prior technical violations; rather, there were two previous violations total, neither specified as technical. In response, the attorney for the Commonwealth stated, "Judge, that's correct," and then added that "the probation officer testified to the [existence of the] prior violations when I asked her about his adjustment to supervision."

Heart then argued that there was no evidence that those prior violations "were technical violations." The court responded, "[D]oes there have to be testimony that the prior two were technical violations?" and Heart's counsel argued, "Yes, sir. In order for it to be a third technical, I believe you have to show that the first two technical violations actually occurred. We have no idea why he was violated prior."¹ At this point, the attorney for the Commonwealth argued, "Judge, I think it goes to sentencing and not—" before the court interjected, "I do as well.... The sentencing guidelines with the technical violations has been checked, as you know. I don't think [the Commonwealth] has to go back and then relitigate the two prior technical or whatever you call them, technical violations, but just the conditions."

Heart then continued to argue that the prior technical violations had not been proved because "[t]here is no testimony that those were technical violations, and if there had been testimony, there's no corroborating evidence of a certified order that they were technical" and that "in order for it to be classified as a third technical ... there has to be some evidence that there are two prior [technical violations]." After the court again disagreed, Heart argued, "That's what the rule and the law requires, that those prior technicals actually be—you can't be here for a third technical violation without proof of the two previous technical violations, and there has been no evidence that the prior violations were technical violations."

The court found that Heart violated the terms of his probation and proceeded to sentence him. The guidelines worksheet, labeled "Third or Subsequent Technical Violation or Any Special Condition Violations," suggested a range of one year to one year and six months of imprisonment. The Commonwealth argued that "the guidelines come up a year to a year and six months, which seems a little high to me" and asked for a sentence of six active months. The court reimposed Heart's remaining balance of three years and four months of incarceration, and suspended two years and ten months, leaving Heart to serve six months to be followed by another year of supervised probation.

ANALYSIS

We start by addressing the Commonwealth's argument—first raised on appeal—that Code § 19.2-306.1 did not apply at Heart's violation hearing. Concluding that the parties agreed to proceed under Code § 19.2-306.1, we hold, as a matter of first impression, that the plain language of the text of Code § 19.2-306.1 requires evidence of two prior technical violations before a defendant may be sentenced for a third technical violation. On this basis, we reverse and remand for resentencing. Finally, we conclude that any error in the admission of evidence about Heart's pending criminal charges was harmless and decline to resolve Heart's argument that the court should have granted his motion to strike.

A. The penalty provisions of Code § 19.2-306.1 applied because the parties agreed to proceed under the statute.

On an appeal of a probation revocation, the trial court's "findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion." Green v. Commonwealth , 75 Va. App. 69, 76, 873 S.E.2d 96 (2022) (quoting Jacobs v. Commonwealth , 61 Va. App. 529, 535, 738 S.E.2d 519 (2018) ). But "an issue of statutory interpretation is a pure question of law which we review de novo." Id. (quoting Conyers v. Martial Arts World of Richmond, Inc. , 273 Va. 96, 104, 639 S.E.2d 174 (2007) ).

Code § 19.2-306(A) has always provided the "statutory authority for a circuit court to revoke a suspended sentence." Id. at 77, 873 S.E.2d 96. Effective July 1, 2021:

Code § 19.2-306(C) was "amended and reenacted" to provide that "[i]f the court, after hearing, finds good cause to believe that the defendant has violated the terms of suspension, then the court may revoke the suspension and impose a sentence in accordance with the provisions of § 19.2-306.1." The newly enacted Code § 19.2-306.1 limits the period of active incarceration that a circuit court can impose for what the statute refers to as certain "technical violations" enumerated under the new statute.

Id. at 78, 873 S.E.2d 96 (citation omitted).

"The General Assembly ‘has the power to define criminal punishments without giving the courts any sentencing discretion.’ " Lilly v. Commonwealth , 50 Va. App. 173, 188, 647 S.E.2d 517 (2007) (quoting Chapman v. United States , 500 U.S. 453, 467, 111 S.Ct. 1919, 1928-29, 114 L.Ed.2d 524 (1991) ). Prior to the enactment of Code § 19.2-306.1, Code § 19.2-306(C) required a court to revoke the suspended portion of a sentence upon a finding of "good cause to believe that the defendant ha[d] violated the terms of suspension." See 2021 Va. Acts Sp. Sess. I, ch. 538. The court was then permitted to "again suspend all or any part of this sentence." Id.

In Green , we considered which version of the law should apply where a probationer both committed the relevant violations before the change in law and where his revocation proceedings also began before that date. We concluded that the earlier version of the penalty scheme should be applied at the later hearing, relying heavily on Code § 1-239. Green , 75 Va. App. at 83, 873 S.E.2d 96. Code § 1-239 provides:

No new act of the General Assembly shall be construed to repeal a former law, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture, or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture,

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